Council Agenda Report

From: Thomas Frutchey, City Manager

Subject: IWMA Ordinance Regulating and Expanded Polystyrene (Styrofoam) Food and Products

Date: October 1, 2019

Facts 1. The City has considered the preferability of a Polystyrene and Expanded Polystyrene (Styrofoam) ordinance several times, most recently at the June 19, 2018 City Council meeting. 2. In 2018, when it was last considered, the Integrated Association (IWMA) was also initiating the consideration of a uniform ordinance for applicability throughout the County. It made sense for the City to await the results of that effort. 3. The IWMA draft ordinance is currently being considered by the IWMA Board. Councilmember Hamon, the City’s representative on the IWMA Board, is asking for community input and Council discussion before the second reading of the draft, to facilitate his efforts to represent the Council and community most effectively.

Options 1. Take no action; 2. Provide input or direction to the City’s representative on the IWMA Board; 3. Take alternative action, if the Council believes that the proposed IWMA ordinance would be out of sync with what would be best for Paso Robles.

Analysis and Conclusions The IWMA and Paso Robles staff reports provide the analytic context for this item. The vote by the IWMA Board on the first reading of the ordinance was affirmative, with the City’s representative being the only no vote. Adoption of the ordinance is likely at the next IWMA Board meeting.

Fiscal Impact None for the requested action. However, there will likely be costs to the City to enforce a Styrofoam ordinance, whether adopted by the IWMA (or the City), as the IWMA would not be enforcing the County- wide ordinance within City limits.

Recommendation Provide any desired input or direction to the City’s representative on the IWMA Board.

Attachments 1. IWMA Staff Report and Draft Ordinance 2. Paso Robles Staff Report from June 18, 2018 can be found at https://www.prcity.com/DocumentCenter/View/23382/June-19-2018-City-Council-Agenda-Item- 14-PDF

Agenda Item 15 Page No. 283 CC Agenda 10-01-19 Agenda Item 15 Page No. 284 CC Agenda 10-01-19 San Luis Obispo County Integrated Waste Management Authority ORDINANCE NO. 2019-1

AN ORDINANCE REGULATING POLYSTYRENE AND EXP ANDED POLYSTYRENE (EPS) FOOD CONTAINERS AND PRODUCTS

WHEREAS, the San Luis Obispo County Integrated Waste Management Authority ("IWMA") is a joint powers agency established pursuant to CaliforniaGovernment Code Section 6500 and empowered by its member jurisdictions to exercise the members' common powers to achieve the mandates imposed by the Integrated Waste Management Act of 1989 (AB 939) on a regional basis; and WHEREAS, items made from Polystyrene and Expanded Polystyrene ("EPS") are not Biodegradable and in many cases, not Recyclable. Polystyrene and EPS break into small pieces and because they are lightweight, may be picked up by the wind even when they have been disposed of properly; and WHEREAS, Polystyrene and EPS as are highly durable. Both Polystyrene and EPS litter are present in parks and public places, streets and roads, waterways and storm drains and may ultimately float, or be blown, into the Pacific Ocean; and WHEREAS, take-out food and beverage packaging that is Reusable, Biodegradable, and Recyclable is the most responsible and sustainable choice for San Luis Obispo County's tourist economy, its citizenry, and its environment. When products are reusable or recyclable, natural resources are spared, and less energy and resources are used to produce new products; and WHEREAS, regulating the use of Polystyrene and EPS will help maximize the operating life of landfills and help protect the natural environment from contamination and degradation; and WHEREAS, the IWMA Board of Directors considered taking action on Polystyrene and EPS at prior IWMA Board Meetings and has directed staff to develop an ordinance to prohibit the use of Polystyrene and EPS containers, trays, caiions, and non-encapsulated products. NOW, THEREFORE, BE IT ORDAINED by the Board of Directors of the San Luis Obispo County Integrated Waste Management Authority as follows: SECTION 1. Recitals. The above recitals are true and correct and incorporated herein by this reference as the findings of the IWMA Board of Directors. SECTION 2. Environmental Determination.

Agenda Item 15 Page No. 285 CC Agenda 10-01-19 The proposed ordinance is exempt from the environmental review requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Further, the proposed Ordinance is exempt fromCEQA on the separate and independent ground that it is an action of a regulatory agency for the protection of the environment because, among other things, it will regulate the use and sale of Polystyrene and EPS and reduce the amount of Polystyrene and EPS that enter local landfillsand waterways. Thus, this Ordinance is categorically exempt from the requirements of CEQA under Section 15308 of Title 14 of the California Code of Regulations as an action by a regulatory agency for the protection of the environment. SECTION 3. Definitions. A. "Affordable" means that a Biodegradable or Recyclable product may cost up to fifteen percent more than the purchase cost of comparable Polystyrene and EPS alternatives.

B. "Biodegradable" means all the materials in the product or package that will break down, or otherwise become part of usable soil-conditioning material such as but not limited to uncoated , sugar cane, wood, or bamboo. This ordinance specificallyprohibits and other compostable as replacements, because Bioplastics contaminate systems and compostable Plastics contaminate the IWMA Regional composting system.

C. "" is a type of biodegradable derived frombiological substances rather than from petroleum.

D. "Disposable Food and Beverage Containers" is interchangeable with "to-go" packaging, "dine-in" packaging, "food and/or beverage packaging material", and means all containers that are used to hold Prepared Food or Beverages. Disposable Food and Beverage Containers include but are not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, , cups, and drink ware that are made of Polystyrene or EPS.

E. " " means a carton for sold to consumers from a refrigerator or similar appliance.

F. "Events Promoter" means an applicant for any event permit issued by an IWMA Member Jurisdiction or any IWMA Member Jurisdiction employee(s) responsible for any IWMA Member Jurisdiction organized event.

G. "Expanded Polystyrene" or "EPS" means blown, expanded, and extruded Polystyrene or other EPS plastic foams which are processed by any number of techniques including, but not limited to, fusion of monomer spheres ( expanded bead plastic), injection , foammolding, and extrusion-blown molding (extruded plastic foams). Expanded Polystyrene and other plastic foams are generally used to make cups, drink ware, bowls, plates, trays, containers, meat trays, ice chests, shipping , and packing peanuts. The Resin Code forpolystyrene is

Agenda Item 15 Page No. 286 CC Agenda 10-01-19 '6' or 'PS,' either alone or in combination with other letters. This definition applies to all Polystyrene or EPS food service ware, packing or shipping material, or non-encapsulated marine devices regardless of whether it exhibits a Resin Code.

H. "Expanded Polystyrene Products" or "EPS Products" means any product made from Polystyrene or EPS, but is not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, cartons, cups, drink ware, as well as non-encapsulated coolers, containers, ice chests, marine buoys, shipping boxes, packing peanuts, or other packaging materials. The Resin Code forpolystyrene is '6' or 'PS,' either alone or in combination with other letters. This definition applies to all polystyrene food and beverage service ware and non-encapsulated products regardless of whether it exhibits a Resin Code.

I. "Food and Beverage Provider" means any establishment located within an IWMA Member Jurisdiction that is a retailer of Prepared Food and Beverages forpublic consumption including, but not limited to, any store, supermarket, delicatessen, restaurant, shop, caterer, farmers market, vending machine, or mobile foodVendor.

J. "IWMA Member Jurisdiction" includes the County of San Luis Obispo, the Authorized District members of the IWMA, and the Cities of Arroyo Grande, Atascadero, Grover Beach, Morro Bay, Paso Robles, Pismo Beach, and San Luis Obispo.

K. "IWMA Region" means the geographic area that includes the unincorporated area of San Luis Obispo County, California,and the seven incorporated cities within San Luis Obispo County.

L. "Non-encapsulated Marine Devices" means any device non-encapsulated used as a floatation aid. Examples include but are not limited to marine buoys and dock floats.

M. "Prepared Food and Beverage" means food or beverages that are (1) ready to consume without any further food preparation, alteration, or repackaging; and (2) prepared, provided, sold, or served by a Food and Beverage Provider using any cooking, packaging, food preparation or beverage preparation technique (e.g., cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared within an IWMA Member Jurisdiction). Prepared Food and Beverages may be eaten either "dine-in" or "take-out" fromthe Food and Beverage Provider's premises.

N. "Polystyrene" means a thermoplastic petrochemical material utilizing the styrene monomer, including but not limited to, rigid polystyrene or Expanded Polystyrene, processed by any number of techniques, including but not limited to fusion of polymer spheres (expandable bead polystyrene), injection molding, Expanded Polystyrene molding, or extrusion-blown molding (extruded polystyrene), and clear or solid polystyrene (oriented polystyrene). The Resin Code for polystyrene is '6' or 'PS,' either alone or in combination with other letters. This definition applies to all polystyrene food service ware, regardless of whether it exhibits a Resin Code.

Agenda Item 15 Page No. 287 CC Agenda 10-01-19 0. "Polystyrene Packing Material" means Polystyrene or EPS material used to hold, cushion, or protect items packed in a for shipping, transport, or storage, including shipping boxes and packing peanuts.

P. "Recyclable" means any material that is specified as recyclable in a franchise agreement within the boundaries of San Luis Obispo County including, but not limited to, aluminum, tin and bi-metal cans, clear and colored containers, high density (HDPE), polyethylene terephthalate (PET), corrugated cardboard, and paper.

Q. "Resin Code" means a resin identificationcode placed on plastics to identify the material composition for separation of different types of plastics for recycling or disposal.

R. "Reusable Food Service Ware" means any product designed to be used over and over for serving, consuming, or transporting prepared foodand raw food, including but not limited to reusable plates, bowls, trays, utensils, wrappers or wrapping, platters, cartons, condiment containers, cups or drink ware, or any container in or on which prepared foodsand raw foods are placed or packaged for consumption.

S. "Supplier" means anyone selling, or otherwise supplying Food and Beverage service ware, packaging, and Non-Encapsulated Marine Devices to any business, store, supermarket, delicatessen, restaurant, shop, caterer, farmers market, vending machine, or mobile food Vendor doing business in the IWMA Region.

T. "Tray" means any packaging used to contain, support, or encase meat, seafoods, vegetables, and other products.

U. "Vendor" means any store or business which sells or offersgoods, services, or merchandise, located or operating within an IWMA Member Jurisdiction, including those referenced in the definition of "Food Provider."

SECTION 4. Polystyrene and EPS Disposable Food Containers are Prohibited. A. Food and Beverage Providers within the IWMA Region may not provide Prepared Food and Beverages in or provide separately any Disposable Food and Beverage Container made from Polystyrene or EPS except as exempted in Section 7.

B. Disposable Food Containers made fromPolystyrene or EPS are prohibited from use in all IWMA Member Jurisdiction stores or businesses which sell or offer goods, services, or merchandise.

C. IWMA Member Jurisdiction contractors in the performance of IWMA Member Jurisdiction contracts and event promoters may not provide Prepared Food and Beverages in Disposable Food and Beverage Containers made fromPolystyrene or EPS.

Agenda Item 15 Page No. 288 CC Agenda 10-01-19 D. Food Providers and Beverage providers are prohibited fromusing, providing, distributing, or selling Polystyrene or EPS.

SECTION 5. Required Reusable, Biodegradable, or Recyclable Disposable Food Containers. A. All Food Providers within IWMA Member Jurisdictions utilizing "to-go" or "dine-in" Food and Beverage Containers shall use Reusable, Biodegradable, or Recyclable products.

B. All IWMA Member Jurisdiction stores or businesses which sell or offergoods, services, or merchandise utilizing "to-go" or "dine-in" Food and Beverage Containers shall use Reusable, Biodegradable, or Recyclable products.

C. IWMA Member Jurisdiction contractors and event promoters utilizing "to-go" or "dine- in" Food Containers shall use Reusable, Biodegradable, or Recyclable products while performing under IWMA Member Jurisdiction contract or permit.

SECTION 6. Prohibited Sales. A. No Vendor, Supplier, or Events Promoter in the IWMA Member Jurisdiction may sell or otherwise provide any Polystyrene or EPS product which is not wholly encapsulated or encased within a more durable material, except as exempted in Section 7. This specificallyincludes, but is not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, cartons,cups, and drink ware as well as non-encapsulated coolers, containers, ice chests, marine buoys and dock floats,shipping boxes, packing peanuts, or other packaging materials. The Resin Code forpolystyrene is '6' or 'PS,' either alone or in combination with other letters. This applies to all Polystyrene and EPS Food and Beverage service ware and non-encapsulated products regardless of whether it exhibits a Resin Code.

SECTION 7. Exemptions.

A. The IWMA Board or designee may exempt a Food Provider from the requirements set forth in Section 4.A. of this Ordinance for a one-year period upon the Food and Beverage Provider showing, in writing, that this ordinance would create an undue hardship or practical difficulty as evidenced by no alternatives being available or if such alternatives are not Affordable. The IWMA Board or Executive Director shall put the decision to grant or deny a one-year exemption in writing, and the decision shall be final.

B. Exemption to allow for the sale or provision of Polystyrene or EPS products may be granted by the IWMA Board or Executive Director if the Vendor can demonstrate in writing a public health and safety requirement or medical necessity to use the product. The IWMA Board or Executive Director shall put the decision to grant or deny the exemption in writing, and the decision shall be final.

Agenda Item 15 Page No. 289 CC Agenda 10-01-19 C. An exemption application shall include all informationnecessary forthe IWMA Board or Executive Director to make a decision, including but not limited to documentation showing factual support for the claimed exemption. The IWMA Board or Executive Director may require the applicant to provide additional information.

D. The IWMA Board or Executive Director may approve the exemption application in whole or in part, with or without conditions.

E. Products made from Polystyrene or EPS which are wholly encapsulated or encased by a more durable material are exempt fromthe provisions of this ordinance. Examples include, but are not limited to surfboards, lifepreservers, coolers, and craftsupplies which are wholly encapsulated or encased by a more durable material.

F. Construction products made from Polystyrene or EPS are exempted from this ordinance if the products are used in compliance with an IWMA Member Jurisdiction's applicable municipal code for buildings and construction and used in a manner preventing the Polystyrene or EPS from being released into the environment.

G. In a situation deemed by the IWMA Executive Director or designee to be an emergency forthe immediate preservation of the public peace, health, or safety. IWMA Member Jurisdiction facilities, Food and Beverage Providers, IWMA Member Jurisdiction contractors, and Vendors doing business with the IWMA Member Jurisdictions shall be exempt from the provisions of this section.

H. Polystyrene or EPS packaged products, which have been received from sources outside the IWMA Region and are home, business, or job-site delivered (e.g. residents or businesses ordering products online or in-store and having them delivered to their home or job-site) shall be exempt from the provisions of this section. SECTION 8. Violations. A. Any Business, Food and Beverage Provider, or Vendor not in compliance will be issued a written warning in which they have ninety (90) days to comply. If upon revisit by the IWMA, the Business, Food and Beverage Provider or Vendor is still in violation of the ordinance, the IWMA may notify the applicable IWMA Member Jurisdiction for enforcement.

B. For the firstviolation, the IWMA or designee may allow the violating Business, Food and Beverage Provider, or Vendor in lieu of payment of the administrative fine, to submit receipts demonstrating the purchase after the citation date of Reusable, Biodegradable, or Recyclable products in an amount equal to the amount of the citation.

C. An IWMA Member Jurisdiction may enforce this ordinance through the IWMA Member Jurisdiction code enforcementordinances, if applicable, and this ordinance shall be enforceable

Agenda Item 15 Page No. 290 CC Agenda 10-01-19 by IWMA Member Jurisdictions under said ordinances as land-use or code-enforcement violations consistent with said ordinances.

D. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity. Fines are established as follows:

1. A fine of one hundred dollars ($100.00) for the first violation aftera written ninety (90) day warning notice is given. 2. A fine of two hundred dollars ($200.00) for the second violation. 3. A fine not exceeding five hundred dollars ($500.00) forthe third and any future violations.

E. In addition to other remedies provided by this section or by other law, any violation of this section may be remedied by a civil action brought by the IWMA Member Jurisdiction attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits forinjunctive relief.

SECTION 9. Severability. If any subdivision, paragraph, sentence, clause, or phrase of this ordinance is, forany reason, held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceabilityshall not affectthe validity or enforcement of the remaining portions of this ordinance. It is the IWMA's express intent that each remaining portion would have been adopted irrespective of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or unenforceable.

SECTION 10. Effective Date. This Ordinance was introduced, and the title thereof read, at the regular meeting of the IWMA Board of Directors on September 11, 2019, and further reading was waived by a majority vote of those Directors present. This Ordinance shall take effect and be in fullforce on and after six ( 6) months fromthe date of its passage and before the expiration of fifteen (15) days from the date of its passage, it shall be published once with the names of the members of the Board of Directors voting for and against the same, said publication to be made in a newspaper of general circulation published in the County of San Luis Obispo. On a motion by Director , seconded by Director ______the foregoing Ordinance was passed and adopted by the Board of Directors of the San Luis Obispo County Integrated Waste Management Authority, this __ day of ______2019, by the followingvote:

AYES:

Agenda Item 15 Page No. 291 CC Agenda 10-01-19 NOES:

ABSENT:

Original signed by

Aaron Gomez, President San Luis Obispo County Integrated Waste Management Authority

ATTEST: Original signed by

IWMA Board Secretary

Agenda Item 15 Page No. 292 CC Agenda 10-01-19 Patti Toews

From: Keith Storton < [email protected] > Sent: Thursday, September 5, 2019 12:27 PM To: Patti Toews Subject: FW: IWMA Board Meeting Sept. 11, 2019 #3. 15

Hi Patti,

I had some comments from a constituent about our Wednesday meeting. My comments are attached. There were some questions I could not answer but suspect they will come up at our meeting. I wanted to make this available for the public record.

Thank you,

Keith

From: Keith Storton Sent: Thursday, September 5, 2019 12:06 PM To: HEATHER JENSEN Subject: RE: IWMA Board Meeting Sept. 11, 2019 #3. 15

Heather,

Thank you for your comments.

I've yet to see the IWMA's Staff proposed ordinance for a polystyrene ban for use or distribution. Next Wednesday will be our first public meeting on the specifics of a potential ordinance.

However, at our July meeting, there was a study session about local recycling processes and the difficulties with polystyrene, to include recycling complications (does not biodegrade, compost or be recycled) and environmental issues (15% of gutter litter, 80%-90% of marine litter, toxic for animals/ingested by humans). There were approximately 30 people from the public that spoke against polystyrene use. No one present spoke in favor or discussed negative impacts with a potential ban. Discussions also revolved around single use plastics. Several cities and counties across the nation have placed restrictions on polystyrene/single plastic uses. I expect the agenda to be available in the next couple days for Board members and the public. This would be available to you on the IWMA website.

Next Wednesday the draft ordinance will be presented. It's completely open as to how the discussion will take place. I suspect there will be discussion about limiting or banning polystyrene uses, however, how that is addressed with businesses impacted by a county ordinance or outside manufacturing and distribution into the county will need to be vetted. There may be considerations where there is an allowance of time, giving business and manufactures time to make changes. My research has indicated many entities want to change packaging due to the negatives impacts, however, existing machinery, production methods and costs are barriers.

Depending on how the draft ordinance is presented several situations can occur,

1) The board can accept the draft and vote to approve the ordinance as is. The public would be allowed to provide feedback at this time. There would be a second reading at our next meeting where again, the public can provide input. Board members may change their mind at that time, provide added material/comments, delay a vote or move forward with the proposed ordinance.

2) Board consensus can direct staff to rewrite all or portions of the ordinance in order to come back for presentation and discussion at a later date. This may be due to preferences provided by Board members or input provided by the public.

3) A Board majority can decide this is a direction we don't want to go and take the ordinance off the table all together.

Agenda Item 15 Page No. 293 CC Agenda 10-01-19 Currently the City of Arroyo Grande (as other cities on our County) have ordinances (Feb. 2016) in place that already limit Food Providers severing prepared food (stores, supermarkets, deli's, restaurants, shops, caterer, mobile food vendors) and are not allowed to use polystyrene packaging. At this time raw foods, meats, fish and poultry are exempted. A county ordinance could possibly change and/or enhance these restrictions. These ordinances are also already allowing customers to use personal containers for food as long as they practice methods to avoid cross contamination.

I appreciate your concerns and I expect a great deal of conversation and public input on Wednesday. I am going to forward your email to the IWMA Staff so it can be included in the public record.

Take care,

Keith Storton Arroyo Grande City Council Member

From: HEATHER JENSEN [[email protected]] Sent: Thursday, September 5, 2019 10:03 AM To: Keith Storton Cc: [email protected] Subject: IWMA Board Meeting Sept. 11, 2019 #3. 15

City Councilman Keith Storton CC: SLO County Supervisor Lynn Compton

Good Morning Keith,

IWMA 9-11-19 Board Agenda# 3. 15

I had good intentions of waiting to approach you with this topic but it looks like it is going back to the IWMA Board on 9- 11-19 so time is of the essence.

It is in regard to the proposed Ordinance to further expand the regulations on various Food Containers and Packaging items in San Luis Obispo County.

I have an email from Patti at the IWMA office with the forwarded Focal Points for the Sept. 11 Board Meeting.

What action is being asked for the Board to address? I asked her the process IF the Board approves this proposed ordinance as I really do not know where it would go from there.

I hope IF that Board approved this Ordinance it would have to go through many more steps to actually be implemented. If the Board is the final step for approval we are all in deep trouble.

I do want to know what input has been asked from the community, especially the Food Service business community, as to the ones that will be affected the most.

The Health Department as well should have input on the proposed "taking your own tableware" for use in a restaurant. The liability is huge for the food service industry.

Agenda Item 15 Page No. 294 CC Agenda 10-01-19 How do local retail stores dictate to their suppliers to change their packaging that is done outside of our county? Has this been addressed?

I hope that the IWMA staff have investigated all the issues extensively before bringing it to this level of Government.

Thanks for your comments.

Heather Jensen

Agenda Item 15 Page No. 295 CC Agenda 10-01-19